0120081134
10-28-2009
William K. Alexander, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, (National Park Service), Agency.
William K. Alexander,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior,
(National Park Service),
Agency.
Appeal No. 0120081134
Agency No. FNP2006004
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 7, 2007, concerning his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following
reason, the Commission VACATES the agency's final decision.
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of race (Caucasian), sex (male), disability
(back problems), and age (42 at the relevant time) when on August 18,
2003, he was not selected for the position of Park Ranger, advertised
under vacancy announcement number MARO-03-18.1
The record reflects that complainant contacted an EEO Counselor on
October 22, 2003, and filed a formal complaint on December 4, 2003.
(Report of Investigation at 20). The record also reflects, however,
that due to administrative error, the agency did not accept complainant's
formal complaint until October 17, 2005. (R.O.I. at 44). On March 29,
2006, complainant requested a hearing before an EEOC Administrative Judge
(AJ), pursuant to 29 C.F.R. � 1614.108(g). (Complainant's Brief on
Appeal, Exhibit 1). The AJ assigned to the case, by Order dated April
19, 2006, directed the agency to produce a copy of the complaint file.
(Complainant's Brief on Appeal, Exhibit 2). The agency, however, did
not provide complainant with a copy of the Report of Investigation
until February 6, 2007, at which point complainant again requested
a hearing before an AJ. (Complainant's Brief on Appeal, Exhibit 4).
The agency then issued a final decision, dated December 7, 2007, finding
no discrimination.
On appeal, complainant requests that the Commission reverse the agency's
final decision and remand the complaint for a hearing before an AJ.
In its response to complainant's brief on appeal, the agency fails to
address this issue.
After a careful review of the record, the Commission concludes that
the agency did not have the authority to issue a final decision on this
complaint, as complainant had previously timely exercised his right to
request a hearing, pursuant to 29 C.F.R. � 1614.108(g). Accordingly,
the Commission VACATES the agency's final decision and directs the agency
to submit the complaint file in accordance with this decision and the
ORDER below.
ORDER
The agency is directed to submit a copy of the complaint file to
the Hearings Unit of the Baltimore Field Office within fifteen (15)
calendar days of the date this decision becomes final. The agency shall
provide written notification to the Compliance Officer at the address set
forth below that the complaint file has been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on the
complaint in accordance with 29 C.F.R. � 1614.109 and the agency shall
issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant.
If the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File A Civil
Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. In the absence of a legible postmark, the request
to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant
in the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 28, 2009
__________________
Date
1 Complainant also alleges that the agency subjected him to unlawful
discrimination on the basis of his veterans' status. The Commission
notes, however, that veterans' status is not a protected basis over
which the Commission has jurisdiction. See Witkowsky v. Department of
the Interior, EEOC Petition No. 03970122 (January 30, 1998).
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0120081134
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120081134